Thursday, May 31, 2012

The Asotin County Sheriff's Office is taking issue with an Asotin woman who filed a false report of rape.

An 18-year-old Asotin woman who claimed she was abducted and raped last Monday by a man was lying to investigators. She told authorities she was abducted on the corner of First and Harding at gunpoint. Sheriff Ken Bancroft said she was cheating on her boyfriend and didn't want to get caught. "The detective from my agency re-interviewed the alleged victim on the abduction and rape case," said Bancroft. "She has confessed to us that she was not abducted nor raped. Any interactions between her and a young man was purely consensual. We are filing charges against her for making a false police report."

Sheriff Bancroft said she and the man went shopping around the Clarkston area before having consensual relations. The Asotin County Sheriff's office will forward the investigation results to the Asotin County Prosecutor to press charges.

Wednesday, May 30, 2012

No sane and rational person wants to see a rapist get away with his vile act. A rapist should not be rewarded for evading justice until a statute of limitations runs out.

But a case in Australia raises concerns for the presumptively innocent. A man allegedly raped his wife in 1963, when such act was not a crime. He is being tried almost 50 years after the alleged incident, and only after two laws were changed: the law that said a man could not rape his wife, and the statute of limitations that originally barred the claim.

We don't know what the man's defense is, or when he first learned of the allegation. If he is arguing, "she was my wife back then, and it was legal to rape her," then please don't ask us to muster any sympathy for him.

But if his defense is "I didn't do it," and if the allegation was sprung on him decades after the alleged act, then the charge raises concerns about the fairness of a trial.

Here in the US, in recent years, state legislatures have adopted varying extensions to their criminal statutes of limitations for cases of sexual assault. Some states have eliminated time limitation for bringing rape charges of varying kinds altogether. Depending on the state, there are special rules for extending the rape statute of limitations for claims involving minors, for claims where the identity of the perpetrator is established by DNA, and for claims involving authority figures. Each of these changes were enacted based on important societal concerns.

But it is also important to consider the other side of the proverbial scales of justice. Open-ended extensions or eliminations of statutes of limitations for purported cases of rape and sexual assault raise concerns widely shared among the criminal defense bar.

"It is a due process issue," says legislative director Andrea Meyer of the American Civil Liberties Union of Oregon. ". . . [T]he reason we have a statute of limitations . . . is to provide the necessary safeguards -- not to protect the guilty, but to protect the innocent." See here.

Last year, Slate interviewed Prof. Aya Gruber, whose feminist credentials can't be questioned, on this issue: "Aya Gruber, a professor at the University of Colorado Law School, says that when the charge is based on the word of the victim, timing can be especially important. 'For example, if a person comes forward with a claim of sexual assault when he was a 7-year-old, 20 years after the fact, arguably the charge is suspect from the beginning,' Gruber points out. 'The person’s memory has been subject to change and influence, essential witnesses might have forgotten the events or even be dead, it may be impossible to get physical evidence in the case, and the like.' Furthermore, Gruber says, a long-delayed charge lessens the retributive and deterrent value of a conviction." See here.

Here, in the prison capital of the world, where there aren't enough jails to hold the men society says deserve incarceration, our zeal to punish rapists is a valid, and appropriate, instinct. But the concern expressed by Prof. Gruber and the ACLU -- about the need to keep the innocent from being punished with the guilty -- is also a valid and appropriate instinct. Unfortunately, theirs is a concern that is difficult to hear amidst the law and order cacophony of the public discourse.

Reader Brandon Webb bemoans the fact that the public discourse over wrongful rape claims is plagued with red herrings that minimize the injustices of FRAs:

In part, I would agree that refusing to prosecute the woman who falsely accused Brian Banks of rape would undermine the public confidence in the justice system. However, what happened to Mr. Banks, as heinous and inexcusable as it is, is not an isolated incident. From my perspective, I posit how many more innocent people's lives must be destroyed to undermine public confidence in our justice system?My confidence is eroded more and more with every case that comes to knowledge. Whether it's the case of Mr. Banks or the plethora of related cases. Like Thomas Kennedy.

Mr. Kennedy spent almost a decade in prison, convicted of raping his daughter. He was released after his daughter Cassandra (now an adult) recanted saying her father did not rape her and she got the idea to accuse him from a friend. Prosecutor Sue Baur, based on the recantation, pushed for Mr. Kennedy's release; however, I can see no evidence indicating that she has made any effort to investigate Cassandra's recantation to date.

Unfortunately, attempts to address false rape allegations are, in my opinion, plagued with red herrings designed to minimize the reality of FRA's and their effect on the wrongly accused.

Distracting side issues such as the prevalence of false rape claims, and how punishing FRAs supposedly affects victims of rape, and how punishing FRAs supposedly has a chilling effect on recantations only serves to dilute the fact that in the case of Mr. Banks (and scores of others) a false allegation was made, and Mr. Banks is the real victim.

A village man was sentenced on Wednesday to 60 days in the Rockland County jail after being found guilty of reporting a false rape to police.Jose Reynoso Guzman, who also goes by the name “Samantha,” was convicted of second-degree obstructing governmental administration and making a punishable false written statement, both misdemeanors, in a bench trial before Village Justice David Fried, Rockland County District Attorney Thomas Zugibe said.

About 2 a.m. Oct. 11, Guzman, 22, solicited a man for sex in Spring Valley, Zugibe said. After a fee dispute turned physical, Guzman contacted Spring Valley police and told investigators that he had been raped by the man.

Zugibe said Guzman’s inconsistent statements to police along with a lack of physical evidence of rape led investigators to conclude that no such assault occurred. Guzman later admitted to concocting the story, Zugibe said.

Guzman, who will receive credit for prison time already served, was ordered to serve three years’ probation following his release.

Tuesday, May 29, 2012

Last week, a UK newspaper reached a new low for irresponsibility when it unjustly maligned an innocent man wrongly accused of sexual assault by gratuitously posting his photo for no good purpose. It was a needless intrusion on an innocent man's dignity, and it might might even have been done for laughs.

The newspaper reported that a 29-year-old sleeping female passenger awoke to find a male stranger groping her chest. She left the carriage, the report said, in shock, and then returned to snap a photo of the man she claimed attacked her. She got off the train at the next stop and contacted the police.

Although the woman contacted police immediately, for reasons not revealed in the news report, the police waited three months after the alleged attack to release the photo the woman had taken.

The innocent male passenger came forward and was interviewed by the police. The police said they were able to eliminate him from their inquiries and that he is innocent. It was said to be a case of mistaken identity, and the police said no further action would be taken against him.

So what does the newspaper do? It publishes a news report with the headline, "Police rule out suspect in photograph taken by woman sexually assaulted on a train." And it includes in the reportthe photograph of the innocent sleeping man! We've included a photo of the news report here, but we've obscured the sleeping man's face, which is plainly visible in the photo.

The man wasn't just innocent, he was apparently sleeping during the entire time the alleged incident occurred. Moreover, he had his photograph secretly taken, only to see his face splashed all over the British media three months later, accused of a heinous crime. And then, even after he's cleared, a major UK newspaper with a massive circulation publishes his photo once more for good measure. And for what purpose?

Two years ago, British politicians who opposed a change in the law that would have granted persons accused of sexual assault limited anonymity successfully argued that anonymity would prevent some rape victims from identitifying their attackers. That rationale carried the day in the UK, and legal anonymity for the presumptively innocent did not become the law.

But even that rationale would not have justified this gratuitous photo identification of the wrongly accused man. We can only hope that the man did not suffer the unconscionable stigmatization that too often accompanies the publicity of sexual assault accusations. In the court of public opinion, for too many people, even a wrongful accusation is its own conviction.

In the wake of news of the horrifying false rape claim that Wanetta Gibson's lodged against Brian Banks, we learn that is uncertain whether Gibson will have to return the money and unlikely she would be prosecuted for making the false accusation so long ago.

Wanetta Gibson concocted a rape lie that derailed the promising football career of a young black man. She had it in her power to free Banks from this false rape hell at any time, but she watched in silence as Banks served over five years in prison despite knowing he was innocent. Then, after he was out but still on probation, she told him she'd help clear his name, but not if it meant disgorging the $1.5 million payment from a civil suit brought by her mother against Long Beach schools.

If Ms. Gibson is not charged, the district attorney owes it to the citizens of Los Angeles to explain why.If the public, and that includes potential rape trial jurors, believes that innocent persons can be convicted and imprisoned as easily as occurred here, they will be all the more wary about convicting anyone for rape in the absence of a video showing the vile deed.It is incumbent on the district attorney to signal that lies such as the one Gibson told are not tolerated, and that Brian Banks' victimization was not acceptable collateral damage in the war on crime. This would go a long way toward restoring public confidence in the system.

Perhaps the statute of limitations has run out on Gibson. If so, it tells us there is something wrong with the way the statute of limitations is written or applied: a rape liar should not be rewarded for her ability to hide the truth until the statute runs out. The statute should only start to run when the rape lie is discovered.

Moreover, the citizens of the school district should insist that Gibson disgorge the ill-gotten gain that unjustly enriched her for a rape lie. Mr. Banks' life was destroyed while Gibson became a millionaire. The outrage should be palpable.

Punishing Gibson Will Not Send Wrong Message to Rape Victims

Punishing Gibson for her lie will not send the wrong message to rape victims who are mulling over whether they should report their rapes.The one has nothing to do with the other, and charging Gibson will only deter rape liars from coming forward, not rape victims.No serious commentator calls for the prosecution of rape accusers in "he said, she said" cases simply because an accusation turns out to be unfounded. But where there is overriding evidence that a rape lie sent a young man to prison and derailed his life, the district attorney must prosecute.

If anyone suggests that charging for this vile rape lie will deter women from coming forward and reporting their rapes, it is they who would be doing a grave disservice to rape victims byimproperly discouraging them from coming forward. Rape victims need to be assured that this atrocity has nothing to do with the claim they should make.

By signaling to the public that rape liars are punished, the public will have greater confidence that the system only honors legitimate rape claims, and that innocent men and boys are not in danger of being destroyed at the whim of a private citizen. This can only help rape victims get the justice they deserve.

The prosecution of rape raises a host of complex issues that require the nuanced balancing of critical and delicate interests: we must, on the one hand, strive to punish malefactors, and on the other, insure that the innocent are not punished with the guilty. The balancing of those two imperatives is difficult enough in the rape milieu without injecting childish politicization into the discourse that insists even terrible lies shouldn't be prosecuted.

Punishing Gibson Will Not Deter Recantations

Others will say that Gibson should not be charged because it would discourage other false accusers from recanting, thus harming even further their falsely accused victims. In fact, it is likely that adopting a policy of not punishing rape liars will have the effect of reducing recantations.

A rape liar makes a false claim to fulfill a personal need -- often to give her a handy excuse, to exact revenge, or to gain attention. The rape liar is unlikely to drop the lie unless she believes that doing so will fulfill an even greater, more pressing, personal need than the one that prompted the lie in the first place. Most rape lies are recanted due to the belief that the lie is likely to be exposed and that the liar will be punished more severely if she refuses to admit it.

In point of fact, rape recantations typically occur only after police have found a hole, often a gaping hole, in the accuser's story and there is little likelihood that the case will go to trial anyway, much less result in a conviction. Police officers apprise the accuser that they've found a video, a witness, or some other evidence, and that her story doesn't add up. That is often enough to prompt a recantation.(Not all recantations are legitimate, of course, and where there is a possibility that the recantation was made out of fear of the man accused, it needs to examined with heightened scrutiny.)But many recantations occur due to the belief that the punishment to the false accuser will be more severe without a recantation. If the fear of punishment were removed, it is unlikely that many false accusers would recant.

More fundamentally, for every other criminal act, our criminal justice system values the concept of deterrence. Would-be false accusers will not be deterred unless they know they face serious consequences. Without this deterrence, what is to stop people from manufacturing lies about serious criminality?

An innocent person should not need to depend on a false accuser's whim to decide whether he or she will, in his or her sole and unilateral discretion, free the accused from a false rape hell by recanting. In fact, a false rape accuser is the last person whose goodwill the falsely accused should be forced to depend on. And, as noted above, without the threat of even greater punishment for not recanting, most rape liars likely would not recant.Far too many falsely accused persons have sat in prison cells and suffered the atrocities of incarceration waiting in vain for a recantation that never was uttered.

LONG BEACH, Calif. -- A former high school football star whose dreams of a pro career were shattered by a rape conviction burst into tears Thursday as a judge threw out the charge that sent him to prison for more than five years.

Brian Banks, now 26, pleaded no contest 10 years ago on the advice of his lawyer after a childhood friend falsely accused him of attacking her on their high school campus.

In a strange turn of events, the woman, Wanetta Gibson, friended him on Facebook when he got out of prison.

In an initial meeting with him, she said she had lied; there had been no kidnap and no rape and she offered to help him clear his record, court records state.

But she refused to repeat the story to prosecutors because she feared she would have to return a $1.5 million payment from a civil suit brought by her mother against Long Beach schools.

During a second meeting that was secretly videotaped, she told Banks, "'I will go through with helping you but it's like at the same time all that money they gave us, I mean gave me, I don't want to have to pay it back," according to a defense investigator who was at the meeting.

It was uncertain Thursday whether Gibson will have to return the money.

Prosecutors also said they didn't immediately know if she might be prosecuted for making the false accusation when she was 15.

Gibson did not attend the hearing on Thursday.

Banks, once a star middle linebacker at Long Beach Polytechnic High School, said he had verbally agreed to attend USC on a four-year scholarship when he was arrested.

He still hopes to play professional football and has been working out regularly. His attorney Justin Brooks appealed to NFL teams to give him a chance.

Banks said outside court Thursday that he had lost all hope of proving his innocence until Gibson contacted him.

"It's been a struggle. But I'm unbroken and I'm still here today," the tall, muscular Banks said, tears flowing down his face.

He recalled being shocked and speechless on the day Gibson reached out to him after he had been released from prison, having served five years and two months.

"I thought maybe it wasn't real," he said. "How could she be contacting me?"

He said he knew that if he became angry when he met with her it wouldn't help, so he struggled to keep calm.

"I stopped what I was doing and got down on my knees and prayed to God to help me play my cards right," he said.

Banks had tried to win release while he was in prison, but Brooks, a law professor and head of the California Innocence Project at California Western School of Law in San Diego, said he could not have been exonerated without the woman coming forward and recanting her story.

Brooks said it was the first case he had ever taken in which the defendant had already served his time and had been free for a number of years.

Banks remained on probation, however, and was still wearing his electronic monitoring bracelet at Thursday's hearing. His lawyer said the first thing the two planned to do was report to probation officials and have it removed.

"The charges are dismissed now," Brooks said. "It's as if it didn't happen. ... It was the shortest, greatest proceeding I've ever been part of."

Banks had been arrested after Gibson said he met her in a school hallway and urged her to come into an elevator with him. The two had been friends since middle school and were in the habit of making out in a school stairwell, according to court papers.

There were contradictions in Gibson's story, as she told some people the rape happened in the elevator and others that it happened in the stairwell.

A kidnapping enhancement was added to the case because of the allegation Banks had taken her to the stairwell. That enhancement also was thrown out Thursday.

Outside court, Banks donned a sweat shirt that read "Innocent," as several friends and family members wept. His parents were jubilant, and Banks thanked them for standing by him.

"I know the trauma, the stress that I've been through, but I can't imagine what it's like to have your child torn from you," he said. "I don't know what I would have done without my parents."

An innocent man has spent almost 20 years in jail for one of New Zealand's most notorious cases of rape and murder, says a detective with expert knowledge of the crime.Susan Burdett was brutally raped and murdered in her Papatoetoe home in 1992 after an evening out 10-pin bowling.

The 39-year-old accounts clerk, who lived alone, was bashed repeatedly on the head with a softball bat that she kept in her bedroom for protection.

A colleague found her naked body on her bed after she failed to turn up for work the next day.

The case horrified the public and baffled police, who had no firm leads for almost a year.

Eventually, a 17-year-old gang associate, Teina Pora, was arrested and convicted of the crime in 1994 after making inconsistent confessions.

But in 1996, DNA testing showed the semen inside Mrs Burdett belonged to serial rapist Malcolm Rewa, who was unknown at the time of Pora's trial but was convicted in 1998 of sexually assaulting 24 women.

"It's one that has stuck in the craw," Dave Henwood told the Weekend Herald this week. "There's no doubts in my mind."

Mr Henwood, a multi-award-winning criminal profiler who also helped catch South Auckland serial rapist Joseph Thompson, said that, in his opinion, Rewa committed the crime alone and Pora was innocent.

Rewa was tried twice for Mrs Burdett's rape and murder.

The jury at his first trial, which covered multiple sex attacks during the 1980s and 1990s, could not reach a verdict on the Burdett charges.

A second jury convicted Rewa of rape but could not decide on the murder charge.

Pora was convicted again in 2000 after a retrial was ordered.

Mr Henwood said the murder charge against Rewa failed only because Pora had already been wrongly convicted.

"You've got a joker [Rewa] who is not convicted of murdering Susan Burdett who did murder her," he said, "and the reason he is not convicted of it is because Pora is in the road."

His comments come soon after barrister Jonathan Krebs, a former Crown prosecutor, filed an application on Pora's behalf for the Royal Prerogative of Mercy, under which the Governor-General can order a new trial.

The Weekend Herald has also learned that an internationally renowned authority on suggestibility and false confessions, Gisli Gudjonsson, recently reviewed nine hours of videotaped interviews Pora gave police and visited him in prison.

Dr Gudjonsson, professor of forensic psychology at the Institute of Psychiatry, King's College, London, conducted pioneering research into how people might be induced to make "confessions" to crimes they hadn't committed.

His testimony is credited with leading to the overturning of the convictions of the Birmingham Six and Guildford Four - two groups of people wrongly accused of terror bombings in Britain.

Mr Krebs, who is convener of the New Zealand Law Society's criminal law committee, this week said he did not want to comment publicly.

He has previously said admissions Pora made were "false confessions" and he was confident his innocence could be proven.

The official police view is that up to four people were involved in Mrs Burdett's death.

This is based on Pora's original claim that two Mongrel Mob gang members he named were responsible.

But both men were cleared by alibi and DNA evidence.

The theory also clashes with the police case that convicted Rewa of the attacks on the 24 other women that he was a habitual lone serial rapist.

Mr Henwood, who retired five years ago as a detective but continues to work for the police as an unsworn officer, said he knew there were issues about Pora's confessions and about identification but he purposely avoided looking at them.

"My view stands solely on the behaviour of Malcolm Rewa and I drew my conclusions from that."

It wasn't plausible that a 40-year-old who was third in command of the Highway 61 gang and who was otherwise always alone when he attacked women would take a 16-year-old associate of arch-rival gang the Mongrel Mob along to watch him rape.

"That's the guts of it. I had a feeling this was all going to turn to custard somewhere down the track, and it should do because, you know, the truth has a tendency sometimes to ... come to the surface."

Lawyers acting for Pora have begun civil action in the High Court over the police's refusal to provide certain information from their files.

This is understood to include the extensive chart on Rewa's methods drawn up by Mr Henwood which was the centrepiece of Rewa's multiple convictions, and whether witnesses against Pora were paid.

A jailhouse informant and two other witnesses who were granted name suppression testified in the second trial to the collective effect that Pora and Rewa knew each other and that Pora had made admissions.

The Weekend Herald has been told evidence has emerged that "tends to impeach" some of this testimony.

Police this week would not say whether witnesses were paid.

"The matter has been before the High Court on two occasions," Detective Superintendent Andy Lovelock said.

"Teina Pora has been convicted on two occasions ... That's the case over."

Tim McKinnel, a private investigator working with Mr Krebs on Pora's behalf, said getting information from the police had been "like pulling teeth".

The former police detective said that more than two years on, "we still don't have some information we need, information we ought to have".

"In March 2010, we met police and asked to work collaboratively with them on a review of the case.

"They declined ... and said they would comply with the OIA [Official Information Act] and Privacy Act only," Mr McKinnel said.

Pora has been in jail for 19 years.

In 2010, the Parole Board said that his continued denial and "his lack of motivation" meant he could not attend a violence prevention unit which could aid in a possible early release.

The board noted there were "complications about his conviction".

"To put the matter in context, it is enough to say that evidence is being accumulated because of serious concerns by serious people that there may have been an injustice."

Wednesday, May 23, 2012

A female ensign accused her subordinate, a decorated Chief Petty Officer named John Gonzales, of sexual assault. In a general court martial, the ensign told the jury she had no direct recollection of what happened in May 2010 after she, Gonzales and a group of sailors from the amphibious assault ship Bataan left a bar and went to Gonzales’ apartment.

Jurors took less than an hour to find Gonzales not guilty of aggravated sexual assault. Instead, they found him guilty of fraternization, a conviction that prevented him not only from re-enlisting in the navy but also from getting even a civilian job.

Gonzales' attorney said that the woman concocted the rape charge to cover up for her own admitted fraternization.

While Gonzales' life is in tatters, what was the woman's punishment? She received a non-punitive letter of caution and was later promoted.

Gonzales has 16 years of experience as an intelligence analyst, including two combat deployments supporting Navy SEALs. He earned a Bronze Star and received the Navy’s top award for leadership in the intelligence community.

Gonzales' punishment is not necessarily unjust, but the the double-standard that punishes one party but not another for fraternization, is. Worse, a sexual assault accusation is used as both a shield to protect the accuser from punishment, and a sword to perpetrate an unjust double-standard.

Tuesday, May 22, 2012

Sometimes, women report they've been raped but then decide not to testify. The reasons they change their minds vary. A 17-year-old rape victim was recently jailed in order to force her to testify. Today, her testimony led to the man being found guilty. Why was she reluctant to testify?

Based on the information available to us, shame. The girl admitted on the stand that portions of her initial story were a lie. The girl initially told investigators she was kidnapped by the man while waiting for a light rail train, but she wasn't. At trial, she testified she was actually prostituting on that night when she got into the man's truck. The jury believed that she was raped before she was able to escape his truck.

Based on the information available to us, we have no basis to question the jury's decision in this particular case. Jurors typically have difficulty crediting an accuser's story in a he said/she said rape cases, and we are not aware of any evidence here that they blew it. A juror told a television station after the verdict that despite originally lying, the teen was believable after admitting she was a prostitute. Another prostitute also testified that the man picked her up in his truck last June, took her to a secluded location and raped her.

Perhaps more often than we'd care to admit, shame is a motivating factor for both making false rape claims (example, Danmell Ndonye in the Hofstra case) and in deciding not to testify, as here.

In the Hofstra case, as we previously explained, the false accuser's boyfriend was trying to call her at the very moment she was urging four strangers to have sex with her, so she lied and said she was raped because she was ashamed.

Here, the accuser wanted to keep from airing the truth because she was prostituting.

Shame about one's sexual misconduct is an impulse that few would advocate eliminating, but when it comes to rape, we, as a society, need to preach that the truth is a more important virtue than modesty. And, we also need to preach tolerance -- so that the truth isn't distorted either by claiming a rape was committed when it wasn't, or by refusing to tell a jury that a rape occurred when it did.

Society should be very glad that this girl testified. She has likely spared other innocent girls a harrowing ordeal. Everyone should be deeply disturbed at the idea that a rapist might not be brought to justice because the victim was too ashamed to testify that she was selling her body.

The community of the wrongly accused does not benefit when rape charges are dropped because the alleged victim was ashamed of what she was doing when she was raped. When society perceives that rapists escape justice, that perception only diminishes confidence in our justice system, taints the community of the wrongly accused, and makes the awful stigma of a rape accusation all the more difficult to remove.

A homeless woman is accused of stabbing herself and then filing a fake domestic violence report to get into a women's shelter. "It's real difficult being homeless especially when there's not enough shelters for women," said Ashley Basham during an exclusive jailhouse interview.

Basham told police her partner had attacked her with a knife and police placed her in a domestic violence shelter for her own protection. She had sustained several stab wounds to her leg.

Under further questioning Murfreesboro police decided her story didn't add up and charged Basham with filing a false report.

"We believe the injuries were self-inflicted," said Kyle Evans with the Murfreesboro Police Department.The police report states that Basham admitted, "... she made this story up and she advised that she stabbed herself so she could get a free place to stay at the domestic violence shelter."

"She took a bed that could have been used for a true domestic violence victim," said Evans.

Basham would not admit during the Newschannel 5 interview that she cut herself in this instance. But she said she had cut herself in the past.

"I can tell you about self-mutilation. You can ask the hospitals I've been in for mental health," said Basham, who said she suffers from anxiety disorder.

She remains in the Rutherford County Jail unable to make the $500 bond.

Monday, May 21, 2012

The exoneration industry is entering an interesting phase. We've known for several years that the cases where DNA can lead to exoneration are drying up. See here. Now, far more than previously, the experts are focusing on the more difficult cases where DNA will not lead to exoneration. Cases involving, for example, claims of acquaintance rape. It will be interesting if any patterns or trends emerge. Our suspicion is that most wrongful convictions on the basis of acquaintance rape involve an overzealous prosecutor far more interested in notching up another "score" than justice.

Battle Creek police are seeking a warrant for a woman, 30, after she admitted she told police her husband held a knife to her throat and raped her. The woman reported the incident April 29 and said she woke to find her husband, 31, in her apartment and that he attacked her. However police said the man denied the attack and said he had spent the night with her and they had sex but then the next day she threatened him after her sister saw the man with another woman. The woman was interviewed and admitted she had concocted the story after learning her husband was with someone else.

In East Ridge Tennessee, on May 10, 2012, a 13-year-old girl claimed she was raped in the girls restroom during school by a light skinned black male, approximately 15-years-old with low cut hair. She sais the teen was wearing a dark blue shirt and blue jeans.

The girl has been charged with filing a false police report. Investigators quickly determined the girl was lying to them about the location of the assault and the alleged perpetrator. Further investigation led police to state that all of her allegations were completely unfounded, leading to the current charges.

Friday, May 18, 2012

Former prosecutor Peter Joseph Costanza was found not guilty this afternoon of sexual assaulting a young women in 2008 when she was 17-years-old. Evidence introduced at the trial raised serious questions about why this matter was even allowed to proceed, and the jurors, consisting of ten women and two men, apparently had concerns about it. Read on.

Costanza claimed the young woman was trying to get back at him for jailing her boyfriend on drug charges. He claimed she came to him and asked him to dismiss the charges against her boyfriend. When Costanza said he couldn't, she told him he would be in trouble and left his office.

Costanza does admit that he had consensual contact with the girl, and this certainly complicated his defense.

But the most compelling evidence introduced might have been the recorded jailhouse conversations between the young female accuser and her then 21-year-old drug-dealing boyfriend -- talking about setting up the "DA" for a sexual harassment lawsuit. On one recording, the boyfriend is heard to say: "Costanza (expletive) me."The conversations occurred before the girl reported being sexually assaulted by Constanza in a conference room in 2008.

It is interesting that the prosecution had the tapes since Costanza's indictment four years ago, but it was the defense that actually listened to the 80 hours of conversations and informed prosecutors of the contents just two weeks before the trial.

Costanza's attorney ripped the police for its lax investigation and rush to arrest his client. "Can you imagine what a slaughter this would have been if I didn't have those tapes?" he asked the jurors.

The need to exercise extreme caution when a putative victim of abuse asks a court to deprive a presumptively innocent person of rights was brought into sharp focus in Pittsburgh, Pennsylvania yesterday.

Last week, the male owner of a Pittsburgh after-hours club was granted a protection from abuse order against a female Pittsburgh police commander. The man claimed he was a "current or former sexual or intimate partner" of the commander, but that after their supposed romantic relationship ended, the commander threatened to destroy his business. "At this point, I felt physically in danger for my life,” said the man on May 9. “This woman carries a gun.”The story was prominently reported in the Pittsburgh Post-Gazette after the petition was filed.

Yesterday, after a nearly two hour hearing, a judge lifted the PFA, finding that there was "not one scintilla of evidence" that there was ever any type of personal relationship between the accuser and the accused.

In fact, it turns out the man's after-hours club had been labeled a trouble spot by police. The petition for the PFA was filed shortly before a zoning hearing where the commander was due to testify about the legality of Mr. Lee's club.

Pittsburgh police Chief Nate Harper released a statement saying he would consult with the district attorney to determine whether criminal charges against the man were possible. The chief called the man's PFA petition "an abuse of the Judicial System."

Thursday, May 17, 2012

This is a case we plan to follow because it raises disturbing questions about the ease with which a non-traditional father can be targeted with a false rape claim.Celebrated celebrity photographer Paul Rusconi of Malibu was cleared of raping his two 20-month-old twin daughters, ending an ordeal that started last June when extended family family members, the girls' nanny and her husband, accused Mr. Rusconi of rape after seeing photos that he had taken of himself with his girls in a bathtub.

Mr. Rusconi was immediately arrested, immediately jailed until he was released on $220,000 bond, and immediately separated from his daughters.

What happened to the twins? Why, they were taken from Mr. Rusconi and handed over to their father's accusers, of course. The accusers had convinced authorities that they were the best caretakers for the twins.

Mr. Rusconi says he was targeted because he is a gay single father. "They all called me a sexual deviant and a pervert," Rusconi said. "That's all stemming from my sexuality."

Months later, a rape kit produced negative results and prosecutors were unconvinced by the allegations, so the famed artist got his daughters back.

Mr. Rusconi is now suing his accusers. He told a local television station: "My circle is much tighter. The people I let into my life is much tighter, and I intend on keeping it that way."

It's tough enough being a non-traditional father without having to experience ordeals like this.

A Rochester woman pleaded guilty Monday to falsely accusing a police officer of raping her and to other charges including drunken driving.Corissa M. Pizzella, 35, whose last known address was 470 Irvin Ave., pleaded no contest to a charge of making false reports, and an additional charge of making false reports was dropped.She also pleaded guilty to charges of drunken driving, endangering the welfare of children and simple assault in a separate case, and a charge of harassment was dropped.

The charges in both cases stemmed from a Feb. 14, 2011, incident that began when Pizzella was arrested and taken to Heritage Valley Beaver hospital by police for treatment of bruises and for blood-alcohol testing, according to a police report.

Shortly before midnight, Rochester officer Derek Shipley drove Pizzella from the hospital to her then-residence in Aliquippa, the report said.

On the way, Shipley called Aliquippa police to ask that they meet him at her residence because Pizzella was “being irate” in the police car, the report said. Shipley dropped Pizzella off in the presence of Aliquippa police around 12:10 a.m. Feb. 15, 2011.

About 40 minutes later, Pizzella called 911 and reported that Shipley had pulled off the road along Route 51 near the West Aliquippa Bridge and raped her in back of the police car while she was handcuffed.

Pizzella was taken back to Heritage Valley Beaver and underwent a sexual assault examination. Shipley agreed to provide his clothing and samples of his blood and hair to medical personnel, investigators said.

Results of a forensic analysis showed no DNA evidence linking Shipley to Pizzella, the report said.

Pizzella also pleaded guilty Monday to one count of drunken driving for an unrelated case where charges were filed by Monaca police stemming from a Feb. 17, 2011, incident.

In 2010, Brett Stewart, an Australian professional rugby league footballer who plays for the Manly-Warringah Sea Eagles, was acquitted by a jury of sexually assaulting a 17-year-old girl.See here. Stewart maintains he was falsely accused, and recently spoke about the ordeal:

"Even though you knew you were innocent, did you ever think maybe the jury could get it wrong and you'd finish up behind bars in jail?

"Absolutely. That was my biggest fear. I knew I was innocent but my fate was in the hands of 12 jurors. If they didn't see it for what it was, yeah, I would have been sent to jail. It could easily have happened. I think about it all the time and how unjust it would be if jurors got it wrong. Not just my case but anyone else."

Wednesday, May 16, 2012

A recent editorial in the New York Times takes issue with the actions of House Republicans in removing certain beneficial provisions from the Violence Against Women Act that would protect undocumented immigrants and others.

In a throw-away sentence, the editorial asserts: "The regressive House alternative removes these and other improvements, including new protections for students on college campuses."

It would be interesting to know what the Times is referring to when it talks about "new protections for students on college campuses," since the only changes in VAWA with respect to college students that we are aware of were made not by House Republicans but by Senate Democrats, with bipartisan support.

As FIRE recently wrote: "The U.S. Senate made bipartisan progress on college student rights on Friday as it passed the Violence Against Women Reauthorization Act of 2011 (VAWA). Heeding the concerns of the Foundation for Individual Rights in Education (FIRE), Senators altered language in the final bill that might have required colleges and universities to employ our nation's weakest standard of proof in adjudicating allegations of sexual misconduct."

It is regrettable that the Times seems intent on marginalizing the critical due process issue FIRE championed, and which had bipartisan support in the Democratic controlled Senate, by lumping it in with controversial partisan issues. The Times seems not to care about the due process concerns FIRE raised. While it would be interesting to see the Times give its views a full airing (and suffer the criticisms of persons concerned about civil liberties), regardless of how the Times feels about those issues, that doesn't excuse it from making factual errors. By suggesting that a bipartisan effort in defense of due process was some partisan, misogynistic attack on women when it wasn't, the Times blew it.

Two young men, 22 and 26 years old, spent their week long vacation locked in the small, windowless brig on a Royal Caribbean cruise liner after an unidentified female passenger accused them of rape. Even though the woman then recanted and a physician concluded she had not been sexually assaulted, the men weren't released.

The young men are suing the cruise line in Manhattan federal-court seeking at least $100 million in damages. They are claiming false arrest and imprisonment, assault and battery, and “outrageous conduct causing emotional distress.”

“I was in such stress, I can’t explain how scared I was,” said one of the young men, a commercial-boiler inspector who lives with his family in Brooklyn. “I got locked up for doing nothing.” The other man said: “The next time we go on vacation, no girls. We won’t talk to anyone.”

The men claim that after climbing into their beds the first night, they were awakened at 5 a.m. by crew members who made them get dressed -- “in prison garments issued by Royal Caribbean.” Then, the staffers led the young men on a high seas perp walk and paraded them “through public areas of the ship to a lock-up facility,” according to court papers.

"Several hours later," according to the New York Post, "they were told they had been accused of raping an 'unidentified woman' who later recanted her allegation and who was examined by a doctor who determined she hadn’t been sexually assaulted. 'Notwithstanding the woman’s recantation and the doctor’s conclusion . . . Royal Caribbean’s arresting agents refused to release plaintiffs or to modify the conditions of their imprisonment,' according to the lawsuit."

The lawyer for the two men said the rape claim “came from a woman who was drunk and who was plainly goaded into making it by a group of people with whom she was traveling.” He accused the Miami-based cruise line of “Gestapo tactics inflicted on two innocent men.”

A Royal Caribbean spokeswoman said the men had been accused of “a serious crime,” and that the company “takes all allegations of crime seriously. “In this instance, our security personnel onboard followed our established procedures,” spokeswoman Cynthia Martinez said.

Lake County prosecutors on Tuesday dropped sexual assault charges against a man accused in a decades-old Waukegan rape.

Bennie Starks, convicted in 1986 of assaulting a 68-year-old woman, had served 20 years of a 60-year sentence when DNA evidence was retrieved that excluded him from the crime. An appeals court ordered a new trial in 2006, and Starks was released on bond.

The State's Attorney had previously threatened to retry Starks on the charges but on Tuesday dismissed the sexual assault counts.

"I'm feeling great," Starks said. "The fight is not over yet. We still have one more hurdle, but it's a great day."

Starks still must deal with an aggravated battery charge the appeals court didn’t reverse. His attorneys maintain he is innocent of all charges. The State's Attorney would not comment on the aggravated battery count.

Tuesday, May 15, 2012

In Ireland, a prominent victim of a bogus sex claim has made an explosive allegation against a major UK newspaper.

Last June, Louis Walsh, a music industry manager and judge on the British television show X-factor, was falsely accused of groping a man in the restroom of a club where one of Walsh's bands was performing. The accuser later pled guilty to making false reports and was sentenced to six months imprisonment.

Mr. Walsh wouldn't let it drop: "I have no intention of letting this matter rest until I have received total and absolute vindication," he said last year. Now, Mr Walsh is suing the publishers of a major UK daily tabloid for defamation over an article it published on June 23, 2011.

In connection with that suit, Mr. Walsh is seeking access to documents that, he claims, will show the newspaper itself offered to pay the false accuser to make the false accusation against Walsh.

Walsh claims the newspaper paid €700 to his accuser and promised to make more payments to him before a journalist accompanied him to a garda station where he made his false complaint against Mr Walsh.

The newspaper denies it is liable for defamation and says it acted fairly and reasonably in relation to the publication.

We will be watching this one closely. If a representative of the newspaper orchestrated a vile false sex claim in the interest of getting a story, it will rank among the most heinous breaches of journalistic ethics imaginable. Let us hope that if it is true, the parties responsible will pay a hefty price.

Monday, May 14, 2012

Dartmouth conducted a mock hearing of a sexual misconduct case last week to demonstrate how the school's disciplinary hearing system is supposed to work. What Dartmouth actually demonstrated is that there is reason to be concerned about whether the rights of presumptively innocent students accused of sexual misconduct are honored at Dartmouth.

There were complaints by students about a lack of professionalism and a randomness in the questioning; one student voiced a concern that the system favors naturally eloquent speakers. It is discomforting that the fate of students accused of serious offenses is entrusted to a system that seems to be marked by chaos.But the greatest concern might be comments of an associate dean. According to The Dartmouth: "Associate Dean of the College for Campus Life April Thompson described the committee’s decisions as a balance between responsibility to the involved students and to the College community as a whole. 'We are a college, a place of learning and teaching, so we have to think about what gives the accused the opportunity to learn,' she said. 'We also need to set a community precedent — sexual misconduct is in opposition to our values.'”

As COTWA's bloggers frequently point out, language matters, and Dean Thompson ought to be more careful about hers. In fact, the "accused" has no need to "learn" anything, because he has not been found guilty of anything. To initiate a disciplinary hearing with the mindset that the "accused" needs to be taught a lesson, and that the the school needs to set a precedent about the horrors of sexual misconduct, suggests a possible bias that is antithetical to the rights of the accused.

We are hoping Dean Thompson's comments were taken out of context and if she wishes to set the record straight, we will gladly afford her an opportunity to do that here.

The Nebraska Supreme Court has ruled that a woman can be sent to jail for refusing to testify against a man she has accused of sexual assault. The ruling stems from a case where a woman claimed a 63-year-old Nebraska man sexually assaulted her between August 1992 and August 1994 when she was approximately 7 years old.

In April 2011, a lower level judge ordered the woman to testify or face 90 days in jail. The judge said the case hinged on her testimony, which outweighed any shame she might feel.

The Nebraska Supreme Court affirmed the lower court's decision last Friday but suggested that jailing the woman might not be the most prudent approach to address her reluctance to take the stand.

Victims' groups, such as the Rape, Abuse & Incest National Network (RAINN), said that forcing the woman to testify would make the criminal justice system even less attractive to rape victims who are already reluctant to report their assaults.

COTWA doesn't think this issue is as clear-cut as RAINN suggests. According to news reports, which may or may not be true, after the woman reported the alleged sexual assaults to the police, Nebraska State Patrol officers recorded a phone conversation between the woman and the man she accused where he admitted touching her inappropriately.Everyone should be deeply disturbed that someone who might have sexually abused a little girl over the course of two years will not face justice, and might be free to sexually abuse other little girls, solely because the complainant finds her victimization shameful.

Society has adopted all manner of measures to lessen the ordeal of reporting rape. At every opportunity, society must strongly convey the message that there is nothing shameful about being a victim of rape. But when we invent special rules to excuse rape accusers from testifying due to the shame they might feel, we send exactly the opposite, and, COTWA thinks, the wrong message: we reinforce the regrettable notion that rape is a shameful crime, so shameful, in fact, that rape cannot be treated the way other crimes are treated.

Celebrated feminist Naomi Wolf has lobbied to ditch the anonymity afforded rape accusers, and her rationale seems equally apt to this situation: "Treating rape so differently serves only to maintain its mischaracterization as a 'different' kind of crime, loaded with cultural baggage and projections."

What evidence is there to support the conclusion that rape accusers are less willing to report their rapes if they know they might be prosecuted for later changing their minds about testifying? And if there is evidence to support this view, should that outweigh the interest of potentially saving innocent girls from being raped by a man who apparently admitted his misdeeds?

The community of the wrongly accused has its own important interest in this issue: it is almost impossible to undo the stigma of a rape claim once an allegation is made. The wrongly accused do not benefit from cases where rape charges are dropped solely because the alleged victim is ashamed. When society perceives that rapists escape justice, that perception only taints the community of the wrongly accused and makes the stigma of a rape accusation all the more difficult to remove.

If a woman decides not to testify because her claim is a lie, she should be prosecuted for making a false police report. If a woman decides not to testify because she is ashamed of her victimization, she exposes other innocent victims to her ordeal; she sets an unfortunate example for other rape victims who might follow her lead; and she taints the community of the wrongly accused. Whether she should be jailed for that refusal to testify is a very difficult issue, something that needs to be decided on a case-by-case basis.

While we don't think the issue is nearly as clear-cut as RAINN seems to think, we claim no monopoly on the truth, and we suggest that it would be healthy to air all sides of this issue.

Saturday, May 12, 2012

Prof. Peter F. Lake of Stetson University College of Law, who specializes in higher education law, said he thinks that Harvard will follow the example of other Ivy League schools that have lowered their standards of proof in sexual assault cases to "preponderance of the evidence," as mandated by the Department of Education's “Dear Colleague” letter.This means that if a disciplinary panel finds there was a 50.1% likelihood that a student committed sexual assault, he will be found guilty.

Prof. Lake said he anticipates a legal battle about the constitutionality of the “preponderance of the evidence” standard, which he thinks may violate accused students’ constitutional right of due process. Lake added that he thinks the “Dear Colleague” letter puts institutions like Harvard in a difficult position of having to choose: “’Do I hold out and violate a federal mandate and face sanctions, or do I potentially violate the due process rights of students?’” Lake said. “That’s a heck of a choice.”

No, Prof. Lake, it is no choice at all. Harvard should be on the side of right, not on the side of political expediency. It shouldn't follow a suspect interpretation of the law that was not enacted by Congress (in fact, Congress recently removed the suspect interpretation from the VAWA reenactment bill), and that was not enacted as a formal administrative regulation -- there was no comment period to allow for all sides to be aired. It was promulgated in the still of the night.

Harvard should follow the Princeton example, which respects both the accused and the accuser when an allegation of sexual assault has been made. It has established separate, parallel procedures for (1) student discipline, and (2) Title IX grievances. Disciplinary proceedings, which involve investigations and adjudications of alleged student violations of University rules, require “clear and persuasive" evidence to find a violation. But Title IX grievances, which involve complaints against the University alleging that Princeton has failed to meet its obligations under federal law, require a lesser standard, a preponderance of the evidence.

Protecting the rights of the accused is vital to all civilized notions of fairness. Employing a stringent standard of proof to adjudicate guilt is critical to the fair treatment of the presumptively innocent. It is universally accepted that the "beyond a reasonable doubt" and "clear and convincing evidence" standards reduce the risk of punishing the presumptively innocent based on factual error. Sexual misconduct cases often come down to a battle of "he said/she said" evidence. The absence of overriding evidence to establish guilt or innocence is neither a valid nor a serious-minded justification for making it easier to punish the presumptively innocent. Just the opposite: it is a sound reason to be ever more vigilant of the possibility of punishing an innocent person for something he or she did not do.

By the same token, since it is often impossible to be reasonably certain about what happened in these cases, it is a moral imperative to also support the accuser if it's likely that she was assaulted. If the school finds by a preponderance of the evidence that the accuser's Title IX rights have been violated by the school, she should be treated as a victim. Such an adjudication might require the separation of the accuser and the accused as well as other protections for the accuser that may impose certain restrictions on the accused. But it would not include besmirching forever his reputation, and impeding his education and employment opportunities, by expelling him, based on a bare preponderance of the evidence.

Friday, May 11, 2012

Someone posted this on Reddit. Members of the community of the wrongly accused don't benefit from this kind of hysteria or grotesque exaggeration. We trivialize their plight, and we build insurmountable gender barriers, when we insist, or even jokingly suggest, that men need to regard every woman as a potential false rape accuser.

Imagine a shirt that said "BACK UP. If you can read this, and we're alone, I can be raped." We would be outraged, and rightfully so.

The vast majority of women and men are offended by false rape claims; the persons most offended, aside from the victims of such offenses, seem to be rape victims themselves, because they understand that every rape lie diminishes the integrity of every rape victim.

The delicate balance that commands us to punish rapists while not punishing the innocent is extremely serious business. We need more sober, more adult, more serious voices to be part of the public discourse on these issues. The last thing we need is more Chicken Little hysteria, no matter which side it's coming from.

In March 2011, Hannah Byron, then a psychology student at University of Teesside, met a man outside a Middlesbrough bar, shared a taxi with him, and had consensual sex with him.

Byron, who is now 20-years-old, had recently split with her boyfriend, but wanted to win him back. So in the early hours of the morning, she concocted a scheme to do just that: she sent texts to the former boyfriend telling him she had been raped. The boyfriend called the police, and Byron "reluctantly" named the innocent man with whom she had consensual sex.

The innocent man was arrested at his home and detained in police custody for almost nine hours. According to a detective, the innocent man was put through an enormous amount of stress through being arrested and questioned over the false claim. If he had been tried for rape, he could have been facing a lengthy prison sentence. "It must have been a very harrowing experience for him,” a judge later said.

Byron's defense in putting an innocent man at great peril of losing his liberty was that her behavior was "very foolish."

The innocent man was released only after he showed the police a video of the sex act, which clearly showed he had not rape Byron. It is not clear if the innocent man would have been charged for rape if he had not revealed the video.

Byron pleaded guilty to perverting the course of justice but convinced a judge not to send her to prison. Her defense was that she got caught up in “a snowballing situation.” If she had told police the truth, it might have subjected her to criminal charges and jeopardized her chances of reuniting with her former boyfriend. Her barrister made it clear to the court that she "did not want not make the complaint," but did anyway.

Judge George Moorhouse gave Byron a 12-month prison sentence, suspended for two years, with a supervision requirement for 12 months and ordered to carry out 150 hours of unpaid work. The judge told her that she had avoided prison “by a short whisker."

Detective Constable James Emery said the victim of the malicious report was relieved that the case is now at an end. He said that such allegations are a drain on police resources and after the sentence genuine victims of sexual assaults may be put off from approaching police.

The detective added: “We would like to reiterate that we continue to treat all such allegations seriously and wish to reassure the community that such reports will always be taken seriously and will be fully and properly investigated.”

Sonia Begum, 21, complained to her cousin Shahen Ahmed, 21, that her boyfriend was pestering her

He then rounded up a gang who kidnapped and set fire to the 22-year-old victim

Both were jailed at the Old Bailey, alongside five other members of the gang

By Graham SmithPUBLISHED: 8 May 2012 | Daily MailA Muslim woman who pretended she was raped by her boyfriend, leading to his prolonged torture by a gang, because she thought he would show explicit photos of her to her devout parents has been jailed.

Sonia Begum, 21, had complained to her cousin Shahen Ahmed, 21, that the man had sexually assaulted her.

Ahmed then rounded up a gang who kidnapped and set fire to the 22-year-old, who cannot be named for legal reasons.

The 'extraordinary and determined barrage' of violence included setting fire to the victim’s face, beating him with a belt and kicking him in the stomach.Begum had claimed that the man was pestering her, and feared that her strict Muslim parents would disapprove of any contact between them, partly because he was Hindu, the Old Bailey heard.

Judge Wendy Joseph QC told Begum: 'You were a young woman leading a double life, trying to comply with a strict regime imposed by your family while secretly having boyfriends, a Facebook account and phones for personal relationships.

'You knew that the kidnap would lead to other things.'

Begum lured him to meet her in Barking, east London, speaking to him on one mobile phone while maintaining an open line to her brother Mohammed Hussain, 20.

Ahmed, Hussain and two other men - Mafijur Rahman, 45, and Kasim Uddin, 35 - then kidnapped him.

She was jailed for four years for kidnap on Friday, while Ahmed was given an indeterminate sentence for public protection for leading the horrifically violent attack.

Judge Joseph told Ahmed: 'Whatever wrong he did could not possibly justify what was done to him. The impact upon him was clearly as devastating as it was to his whole family.'

She went on: 'The nature of the punishment was profoundly cruel. You set about physically and mentally hurting (the man) by beating, by fire, by verbal abuse, by fear and by humiliation.'

During the kidnap, a series of 'truly terrifying' phone calls were made demanding money from his family, in which he could be heard screaming, the court heard.

The judge said: 'They were very frightening. There were repeated threats to kill (the man) backed up by the sound of him screaming and crying in fear and pain. They were truly terrifying.'

The attackers also repeatedly called him a 'Hindu b******'.

Ahmed, of Wapping, east London, was told he must serve at least eight-and-a-half years before he can apply for parole.

Thursday, May 10, 2012

Someone posted this picture on Reddit and claimed it was taken at UCLA. I get it: guys being guys and all, they might just "forget" and rape a woman. Sigh. What a wasted opportunity to make a real statement about rape. How about a poster like this:

Hook-ups + alcohol = trouble.

Friends don't let friends hook up drunk.

Alas, the people behind this sign seem more interested in stereotyping men than in doing something to help sexual assault victims. Yes, indeed, this sign would be helpful . . . if sociopaths paid attention to sarcastic public service announcements. Since it's a pretty good bet they don't, why not address the culture of booze-fueled hook-ups that are at the heart of the college sex problem?

The Wesleyan Student Assembly passed a Student Judicial Reform Resolution Sunday that recommends increasing the standard of proof from “fair preponderance” to “clear and convincing evidence” for student disciplinary hearings. This would apply to all infractions of the Code of Non-Academic Conduct, excluding cases of sexual misconduct, harassment, and abuse. (The reason for the exclusion, presumably, is the mandate of Department of Education's April 4, 2011, "Dear Colleague" letter.")A student named Joe O’Donnell ’13 began the initiative last year to increase the standard of proof with an online petition that was circulated to students.

“The [University’s] current standard, ‘preponderance of the evidence,’ requires that Student Judicial Board (SJB) members only find ‘more likely than not’ that a violation occurred,” the petition reads. “This standard is typically applied in civil cases, and only requires slightly more than 50% certainty. The proposed higher standard, ‘clear and convincing evidence,’ which is between preponderance and beyond a reasonable doubt, requires that SJB members find ‘substantially more likely than not,’ that a violation occurred.”

Scott Elias ’14, the primary author of the resolution, said: “The issue can be simplified to whether Wesleyan as an institution believes in innocence until proven guilty, or guilty until proven innocent, with current policy reflecting the latter.” Mr. Elias noted: “After the administration proved to be unresponsive to a reasoned debate grounded in intellect, practical idealism, and student interest, we carried this effort through a resolution—the only means left to reflect our belief that, in a community that adheres to principles of justice, basic liberties, like due process, are rights secured and not subject to political bargaining or to the calculus of social interests,” he said.

According to the school's student newspaper: "Innocent students can be found guilty under the standard of 'preponderance of the evidence' if, for example, seven students are in a room and five of them are found to have been drinking. The remaining two students would be considered 'more likely than not' to have consumed alcohol as well. Under the University’s current standard of proof, the two students who may or may not have been drinking would be found guilty." http://wesleyanargus.com/2012/05/03/standard-of-proof/

The picture painted by the students at the college is dire. We have one question: is there any reason why the students' concerns shouldn't apply with at least equal force to claims of sexual misconduct, which are the most serious that a school's disciplinary board adjudicates? We can't think of any.

A 22-year-old Naperville woman faces a felony charge of disorderly conduct for falsely reporting she was sexually assaulted, authorities said Friday.Sarah C. Eschbach of the 2700 block of Spinner Court turned herself in Thursday night, Aurora police spokesman Dan Ferrelli said. She was being held Friday in DuPage County jail on $15,000 bail, according to court records.

On March 26, Eschbach filed a report with Aurora police, saying she was sexually assaulted by a 21-year-old man at his apartment on Aurora’s far east side.

Investigators determined Eschbach and the man engaged in consensual sexual relations and the man, who is an acquaintance of Eschbach’s, did not sexually assault her, Ferrelli said.

“Sexual assault is a brutal crime and we take these allegations seriously,” Ferrelli said. “We investigate them thoroughly and if the claims are false, charges will be pursued.”

The DuPage County state’s attorney’s office authorized the felony disorderly conduct charge against Eschbach April 24, and a warrant for her arrest was issued May 1.

The University of Maryland's student newspaper is running a story today about how the university lowered its standards for finding students guilty of sexual misconduct earlier this semester, in compliance with new federal "Dear Colleague" mandate. The story includes this stunning quotation: "[F]reshman electrical engineering major Steph Winter said letting someone guilty of a serious crime go unpunished would be more harmful than finding an innocent person guilty. It’s obviously one of the big side effects, if it could result in an innocent person being found guilty,” she said. “But I think sexual assault is such a big issue that it’s worth the risk.”This sentiment flips on its head a long-settled principle of law famously expressed by the celebrated English jurist William Blackstone: it is "better that ten guilty persons escape than that one innocent suffer." (Commentaries on the Laws of England, 1765.)

In fact, the debate about whether it is just to punish the innocent in order to insure that the guilty are punished has been settled since the time of the Book of Genesis. The Bible recounts that when God was deciding what to do about the evil in Sodom and Gomorrah, Abraham put this question to him: "Are you really going to sweep away the innocent with the guilty?" After repeated probing by Abraham, God made it clear he would not destroy the guilty if it meant destroying the innocent with them.

In modern times, "Blackstone's formulation," or as it is sometimes called "The Blackstone ratio," has been imprinted on the DNA of our jurisprudence. Our Supreme Court, in various ways, has underscored that it is one of the pillars undergirding our jurisprudence.

Justice William O. Douglas, a liberal icon for much of the 20th Century, stated: "It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest." Henry v. United States, 361 U.S. 98, 104, 80 S. Ct. 168, 172 (1959).

Justice Harlan once wrote: "I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)(Harlan, J. concurring).

Somehow, this formulation has been cavalierly turned on its head in the current debate over the "Dear Colleague" letter.

Is the pain of a rape survivor in seeing his or her rapist go free in any sense comparable to the injustice inflicted when the state deprives an innocent person of his liberty? The question scarcely survives its statement.

"Terrible as it is for a victim to see a rapist escape punishment, it is far, far worse for an innocent person to be convicted of a sex crime." Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, S. Taylor, K.C. Johnson (2007).

Take, for example, Dwayne Dail, who was convicted of a rape he did not commit as a teenager and spent the next 18 years in prison. While in prison Mr. Dail was repeatedly and brutally victimized by the same crime that he, himself, did not commit. His life was shattered, and it is fair to assume he will never be whole after his unspeakable ordeal. Can anyone seriously assert that the pain of the rape victim in Mr. Dail's case was in any sense lessened by having this innocent man destroyed?

Rape victims whose misidentification of their perpetrators lead to wrongful convictions often develop deep psychological trauma when they learn what they've done. Actual rape victims have no interest in punishing the innocent and are often among the most vocal critics of false rape accusers because they know that every rape lie diminishes the integrity of every legitimate rape claim. I have put the question to one of the nation's most prominent victims of clergy sex abuse, and his unhesitating answer was that he hates false accusers because of what they do to real victims.

While an individual is capable of doing terrible things to another individual, including rape, neither the state, nor an institution of higher learning acting at the behest of the state, should ever fall to the level of a criminal and reasonably risk doing a terrible thing to another human being. Convicting an innocent man of rape, or expelling an innocent man for rape, is not an acceptable risk in the name of nabbing more offenders. Beyond that, punishing the innocent undermines public confidence in the way rape claims are prosecuted. This not only works an injustice to the wrongly accused, it does no favors for rape victims. When juries and the people who decide college disciplinary hearings believe that the system allows the innocent to be punished, they are all the more wary about punishing men and boys for rape charges, even those who deserve to be punished.

A wrongful acquittal is a terrible thing, of course. But a wrongful acquittal is never, ever the equivalent of a wrongful conviction, and to suggest otherwise is morally grotesque.

Dictators throughout history have justified the ruthless imprisonment, torture, and murder of the innocent to insure that the "guilty" (who always happen to be their enemies) are vanquished. It is a monstrously barbaric -- and, we might add, singularly un-American -- practice.

The reason Blackstone's formulation retains its validity is self-evident. It is the very hallmark of a civilized society.

Two unidentified massage therapists, represented by the same attorney, are suingJohn Travolta in federal court for a total of $2 million. The massage therapists are identified only as "John Doe No. 1" and "John Doe No. 2" in the civil complaint filed in federal court. They claim that in two separate incidents last January, Travolta masturbated in front of each of them while he received massages. In addition, Travolta supposedly exposed himself to the masseurs and grabbed their genitals in an attempt to make sexual advances toward them.

Travolta's attorney calls the claims "false and fabricated." He claims his client was out of town when the first assault supposedly occurred. In addition, he noted that the plaintiffs' attorney is not permitted to shield the name of his clients.

The plaintiff's attorney defended his action of filing a complaint without actually naming his clients. He said it was standard practice to withhold the names of potential victims of sex attacks. “I do it for all of my female clients who are victims of sexual assault, and I'm not going to treat the men any different than the women,” he said. “I think it's malpractice to identify them (in a complaint). I'm leaving it up to the judge. If they think that's strange, they may not be familiar with the law.”

It is important to keep in mind that this is a civil action seeking only monetary damages. No criminal charges have been filed against Mr. Travolta. While judges in civil actions often do allow sensitive information to be filed under seal, we are aware of other recent high profile sexual assault civil actions that were not filed anonymously (e.g., the Ben Roethlisberger case and the Johan Santana case).

Let's make another important distinction: when a sexual assault civil action is filed, it is generally the news media that shields the identities of the plaintiffs, even though the court docket contains their names. But note this disturbing case where two young men filed a sexual assault civil action: some news outlets shielded their identities, but others--in clear violation of their own policies--didn't bother (nor did they bother to explain themselves).

Of course there should not be a double standard for male and female accusers. But the bigger question is whether anyone should be anonymous in a civil action seeking money damage for sexual assault. We've previously noted that for criminal actions, the issue of anonymity is a difficult one that is anything but clear cut. Civil actions, we suggest, present an easier answer.

Unlike a criminal case that is brought by the state on behalf of "the people," a civil dispute is a private one brought by private parties. In the Travolta case, even assuming for the sake of argument that the plaintiffs' claims can be proven by a preponderance of the evidence (the civil standard), a victory by the plaintiffs will not keep a sexual assaulter off the streets or protect a single other victim from him. Mr. Travolta's liberty is not at stake. In fact, a victory will do nothing more than give three people a nice payday: the two plaintiffs and their attorney. While maintaining the anonymity of alleged rape victims in criminal matters arguably fosters a culture that encourages other victims to come forward for the sake of society as a whole, society has far less interest in encouraging alleged rape victims to come forward to seek personal monetary gain. When people use public courts to seek a private monetary award, generally, they should not be permitted to insist that they do so anonymously.

In our recent discussion about anonymity in criminal actions, we noted that Naomi Wolf and Prof. Alan Dershowitz criticized anonymity in the context of criminal cases. The argument to scrap anonymity is all the more compelling in civil actions.